Agenda - Planning Commission - 08/29/2002

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August 10, 2002 -- Page 3 Communications Towers - Permit requested for tower close· to residential zone and another tower Neighbors objected due to aesthetics and property value concerns [NDIANA (06/12/02) -- Network Towers LLC bUilt and maintained wireless communications towers. Network ~ntered into an a~eement with Centennial Communications for the construction of a 250-foot tower in an area zoned R-2. There were a number of restrictions noted in the controlling zoning ordi- nance for such projects, and Network became aware the proposed tower was too close to a residential zone and also too close to another tower. Thus, pursu- ant to the ordinance, Network appliedfor a conditional use permit. In its application to the Board of Zoning Appeals, Network noted there was no e,,dsting structUre within the area capable of meeting the needed capacity. Network supported the application with an attached eng-ineering statement. On Oct. 17, 2000, Network appeared before the board: Two neighbors also appeared and objected to the project, noting aesthetic concerns and the poten- tial for a reduction in their p,ropert7 values caused by the proximity of their homes to the tower. None of the neighbors submitted any supporting evidence2 The board issued its findings and incorrectly stated the request.was for a variance, instead of a conditional use permit. The "variance" was denied be- cause there were other towers within five miles of the proposed site. Further,' the board concluded the proximity of the tower to the residential area would have a negative impact on the property values. The board also determined strict compliance with the ordinance would not Constitute" ' urmecessary hardship." Network appealed to court, which affrr'med the decision of the board. Net- ~,ork appealed again, noting a conditional permit was requested, not a. var/, ance.' Also, Network contended the decisions of the board were .conclusive and not supported by evidence. : DECISIO~q: ReverSed and remanded. ' Network should ha,~e been ~anted a conditional use permit. Network applied for a conditional use permit, not a variance. A conditional use was a permitted use under the terms of the ordinance as long as certain specified conditions were met. A conditi0nM.use was not an exceptional use as. was a variance. This distinction was important because a variance wasa matter committed to the discretion of boards of zoning appeal. A special exception was manda- - tory once the Network showed compliance with the-relevant statutory criter/a_ The court noted one of the conditions for'obtaining a conditional use per- rrfit for the tower was "the exten~,to wkich ~anting the' conditional use would substantially serve the public safety and welfare." The board's findings with regard to the impact on property valUes and other feasible locations were conclusory and not supported by sufficient evidence. Further, these .findings lacked specificity and evidentiary support. Thus, the decisions were inadequate as a matter of law. 127